Judges Over Principles

The never-Trump legal movement has morphed into a push to pack the courts with Trump-selected judges.

President Donald Trump speaks to reporters as he departs the U.S. Capitol after addressing the House Republican Conference on Thursday.

Bill O'Leary/The Washington Post via Getty Images

In October 2016, just weeks before the presidential election, a group of 29 prominent “originalist” legal scholars produced an extraordinary statement decrying Donald Trump’s candidacy. Despite Trump’s stated enthusiasm for originalist judges, these legal luminaries wrote to warn about the dangers the Republican nominee posed to constitutional values. “Our Constitution vests in a single person the executive power of the United States,” they explained in the statement. “In light of his character, judgment, and temperament, we would not vest that power in Donald Trump.”

The letter went on to proffer a searing indictment of then-candidate Trump’s contempt for the Constitution and warned against the kind of transactional compromises that would allow originalists to hold their noses and vote for him:

Many Americans still support Trump in the belief that he will protect the Constitution. We understand that belief, but we do not share it. Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.

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The signatories noted a slew of reasons to be concerned about Trump’s commitment to constitutional principles: his admiration for foreign dictators, his disregard for the basic principles of equal protection of the laws, and his lifelong tendency to “[treat] the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.” In the event that any of this was less than clear, they added that a “but the judges” justification for voting for Trump was insufficient: “[We] do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.”

This document now stands as a kind of historical artifact, a last gasp of legal never-Trumpism from the leading lights of the conservative legal academy. One of the signatories, Federalist Society co-founder and Northwestern University Pritzker School of Law professor Steven Calabresi, told Fortune at the time that it would be a mistake for conservatives to sacrifice principle just to fill a seat at the Supreme Court. “As important as the Supreme Court is,” he said, “there are other things that are much more important, like defense and foreign policy, and Trump is by temperament unable to do a good job at these. Trump is impulsive, totally lacking in self discipline, and petty and vindictive.”

This is the one issue on which the Jeff Flakes and John McCains will never defect.

One year later, at last week’s Federalist Society conference, they were handing out stress balls with “But Gorsuch!” printed on them. This month, the formerly Trump-hating Calabresi also floated a plan to allow Trump to pack the courts with judges of his choosing—to have the GOP-controlled Congress “appropriate funds to increase the size of the lower federal courts.” How big should the federal courts be? The “optimal number of active circuit court judgeships is at least double the current number of 167 authorized judgeships,” Calabresi says, “and more likely between 2.5x and 3x the current number.” Ron Klain points out that Calabresi is also proposing that Congress abolish 158 administrative law judgeships in federal regulatory agencies and replace them all with 158 Trump-selected judges. And all of this must be done before the 2018 elections.

As Ian Millhiser observed, Calabresi’s memo, which he co-wrote with recent Northwestern University law school graduate Shams Hirji, “seems to advise members of Congress to argue that this court-packing plan is necessary for politically neutral reasons, such as overworked courts.” That supposed rationale, however, isn’t very convincing, given that the first page of the memo notes the goal of “undoing the judicial legacy of President Barack Obama.” The plan to double or even triple the number of federal judgeships feels like a hedge against a potential backlash to Trumpism: When/if Trump gets booted from office, at least the courts will be fully stocked with Federalist Society true believers. Last year, “but the judges” wasn’t enough of a justification to vote for Trump. Now it’s the reason to reshape an entire branch of government.

Join Dahlia Lithwick and her stable of standout guests for a discussion about the high court and the country’s most important cases.

And so we get judges like Brett Talley, the 36-year-old rated “not qualified” by the American Bar Association who forgot to disclose in his Senate questionnaire that his wife is the White House counsel’s chief of staff. The response from the White House and the Republican-controlled Senate has been to discredit the ABA, to do away with the blue slip, and to put forth yet more joke nominees. Why seat an experienced, thoughtful conservative judge if you can put up adolescents and operatives?

Top Comment

Come now, Dahlia - you can't seriously be this obtuse. Of course the members of the Federalist society can simultaneously not like Trump as a president but still like that he appoints Federalist society members to the bench. More...

Last year, the originalist never-Trumpers told us they were playing a particular kind of long game, one in which the short-term benefits of having a Republican in the White House could not be allowed to outweigh the ramifications of electing an unfit president, even if it meant a massive win on judges. Now, this high-minded rhetoric has been tossed aside in favor of an entirely different long game.

This is the one issue on which the Jeff Flakes and John McCains and the other Republicans who purport to be principled about Trump’s failings will never defect: They will seat the judges, experience or temperament be damned, who will ensure that long after the constitutional conflagration that is Donald Trump has passed, the bench will belong to the GOP. The “Democrats started it” nonsense about Chuck Schumer and Robert Bork will substitute for calls for consistency or accountability or the need to reconcile last year’s positions with this year’s. Democrats are frequently faulted for refusing to play the long game when it comes to stacking the federal courts. The never-Trumpers who’ve now decided they love Trump are playing that game and winning it. They may destroy the legitimacy of the judicial branch in the process.

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